27 S.E.2d 113 | N.C. | 1943
Criminal prosecution upon an indictment charging the defendant with assault with intent to commit rape.
At the conclusion of the State's evidence, the defendant moved for judgment as of nonsuit upon the charge of assault with intent to commit rape, and tendered to the court a plea of guilty of an assault upon a female.
The court, being of the opinion that the State's evidence was not sufficient to warrant the submission of the case to the jury on the charge of assault upon a female with intent to commit rape, accepted the plea tendered by the defendant. Thereupon, the court found as a fact that the child, the female referred to in the bill of indictment, is nine years of age, and that the defendant is thirty-four years of age.
The court further found: "That the assault committed by the defendant was aggravated, shocking and outrageous to the sensibilities and decencies of right-thinking citizens, as will be disclosed by the testimony in the record."
Judgment: That the defendant be confined in the State's Prison for not less than eight nor more than ten years. Defendant appeals, assigning error. Defendant's only exception is to the sentence imposed as being violative of the Constitution of North Carolina, Art. I, sec. 14, and the statutes prescribing punishment for misdemeanors. The exception must be sustained.
C. S., 4173, provides: "All misdemeanors, where a specific punishment is not prescribed, shall be punished as misdemeanors at common law; but if the offense be infamous, or done in secrecy and malice, or with deceit and intent to defraud, the offender shall be punished by imprisonment in the county jail or state prison for not less than four months nor more than ten years, or shall be fined."
While his Honor found that the assault was aggravated, shocking and outrageous to the sensibilities and decencies of right-thinking citizens, the court did not find the offense to be infamous. Moreover, we do not think the plea tendered by the defendant, and accepted by the court, constituted a plea of guilty to an infamous offense, but, on the contrary, constituted a plea of guilty of a misdemeanor punishable as provided in C. S., 4215. *494
In the case of S. v. Smith,
There is error in the judgment rendered below, and the case is remanded to Pitt County Superior Court, to the end that a proper judgment *495 may be rendered on the plea tendered by the defendant and accepted by the State, in accordance with this opinion.
Error and remanded.